Alep v US Authority Keanu SAI v Clinton Invoking Cherokee
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Transcript of Alep v US Authority Keanu SAI v Clinton Invoking Cherokee
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People of Saipan v. United States Department of Interior, [1974]
USCA9 332; 502 F.2d 90 (9th Cir. 1974), which stated broadly that
the Trusteeship Agreement was a source of individual legal rights,
id. at 99, suggesting that in a proper forum the plaintiff class couldseek injunctive relief to enforce treaty rights.
The U.S. Courts held that the Trust Territory was a foreign country
even though governed by the United States. See Callas v. United
States, [1958] USCA2 210; 253 F.2d 838 (2d Cir.) [Kwajalein], cert.
denied, 357 U.S. 936 (1958); see also Brunell v. United States, 77 F.
Supp. 68 (S.D.N.Y. 1948) [Saipan].
Dissent: The United States Government's attempt to deny its
acceptance of responsibility for wrongful acts committed during pre-
Compact time reflects the continuing betrayal of indigenous peoples
by this same Government. Ever since 1831, when Chief Justice
Marshall first wrote his opinion in Cherokee Nation v. Georgia, 30
U.S. 1, 8 L. Ed. 25 (1831), this same government has refused to
recognize the plain language of its own treaties. By declaring Indian
Nations domestic nations rather than foreign nations, JusticeMarshall annihilated the complete and separate sovereign power
promised to the indigenous people through numerous treaties. To
justify why his Court would not allow the Indians to sue the United
States Government for its wrongs, Marshall said:
At the time the Constitution was framed, the idea of appealing to an
American Court of Justice for an assertion of right or a redress of
wrong, had perhaps never entered the mind of an Indian or of his
tribe. Their appeal was to the tomahawk, or to the government. This
was well understood by the statesmen who framed the Constitution
of the United States and might furnish some reason for omitting to
enumerate them among the parties who might sue in the courts of
the Union.
Cherokee Nation, 30 U.S. at 18, 8 L. Ed. at 31.
http://www.worldlii.org/us/cases/federal/USCA9/1974/332.htmlhttp://www.worldlii.org/us/cases/federal/USCA9/1974/332.htmlhttp://www.paclii.org/cgi-bin/LawCite?cit=502%20F2d%2090?query=http://www.worldlii.org/us/cases/federal/USCA2/1958/210.htmlhttp://www.paclii.org/cgi-bin/LawCite?cit=253%20F2d%20838?query=http://www.paclii.org/cgi-bin/LawCite?cit=357%20US%20936http://www.worldlii.org/us/cases/federal/USCA9/1974/332.htmlhttp://www.worldlii.org/us/cases/federal/USCA9/1974/332.htmlhttp://www.paclii.org/cgi-bin/LawCite?cit=502%20F2d%2090?query=http://www.worldlii.org/us/cases/federal/USCA2/1958/210.htmlhttp://www.paclii.org/cgi-bin/LawCite?cit=253%20F2d%20838?query=http://www.paclii.org/cgi-bin/LawCite?cit=357%20US%20936 -
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One hundred and sixty-five years later the United States
Government calls upon this Court once again to betray the
indigenous people to whom they have promised an opportunity forreparations of past wrongs. I cannot allow the United States
Government to again disavow its prior agreement with an
indigenous people, namely, the people of Micronesia.
II. Retroactive Effect of Treaty
The plaintiffs recognize that the Trusteeship Agreement was not in
force when the population was displaced by military action following
a general war between belligerent powers using the affected islands
and waters for military operations. They argue, however, that the
Trusteeship Agreement was a treaty which imposed upon the United
States as trustee continuing duties in favor of the citizens of the
Trust Territory, and that during the period of Trusteeship the United
States wrongfully ignored, neglected, and failed to perform its duties
according to the terms of the Agreement.
The plaintiffs argue next that these failures to perform the duties
imposed by the treaty were a continuing course of wrongful conduct
that also violated the terms of subsequent agreements entered into
between the United States and the people of the Trust Territory of
the Pacific, including the Micronesians residing in what are now the
Federated States of Micronesia. Accordingly, the plaintiffs argue,
there is no need to consider retroactive application of the
Trusteeship Agreement because the wrongful conduct continued,
and created continuing rights and duties.
The plaintiffs' argument begins with the alleged misconduct of the
United States Navy during the period of the Navy control of the
territory from 1945 until the United States Department of Interior
assumed a degree of civilian control in 1951. Thereafter, until the
formation of the government of the Trust Territory of the Pacific
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Islands in 1968, plaintiffs argue that the United States remained
responsible for the management of the affairs of the affected islands
through executive delegations.
Between 1968 and the formal termination of Trusteeship in 1986,
with the concurrent effective date of the Compact, the High
Commissioner, representing the United States government, was the
responsible official whose duties under the Trusteeship included the
administration of remedial policies announced by the United States
government to compensate the victims of wartime and postwar
dislocations, and loss. Plaintiffs argue that the Trusteeship period
was marked by indifference and neglect of existing remedies on
behalf of the victims of the wrongful removal of island residents.
The historical recitation makes a strong case that the United States,
as trustee, failed to carry out the lofty promises of Article 6 and 7 of
the Trusteeship Agreement, notably to "protect the inhabitants
against the loss of their lands and resources" Trusteeship Agreement
art. 6(2), and to "guarantee to the inhabitants . . . freedom of . . .
migration and movement," id. art. 7.
It does not follow, however, that the bureaucratic abuses attributed
to the Navy, the office of the High Commissioner and to the
government of the Trust Territory of the Pacific Islands, created
private rights of action for aggrieved individuals who might wish to
sue for money damages in their country's courts for historic wrongs.
We must continue the search for a private right of action.
Scholarly writing since the General Assembly of the United Nationsadopted the Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes Against Humanity, G.A. Res.
2391, U.N. GAOR, 23rd Sess., (1968), strongly supports an
international common law principle opposed to the employment of
statutes of limitations to war crimes and crimes against humanity.
However, the choice whether to allow the defense of municipal
statutes of limitations is not compelled by the municipal law of
states that have not signed the Convention. The United Statesgovernment has not signed the Convention.
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VI. Individual Defendants
We need not decide whether the tort claims (assaults, batteries,
trespass, false imprisonment, infliction of emotional distress,
confiscation and conversion of property) are also crimes against
humanity, for which the individual defendants, as agents of the
United States might, in a proper case be subject to liability despite
the passage of time. Any claims that survive the running of time and
the expiration of various remedial statutes providing for
compensation for damages caused by military operations in thePacific would be recognized as claims against the United States, not
against the individual defendants who may have had a part in
executing the actions now in question.
International law does not impose vicarious liability on the chief of
state or upon elected and appointed officials to whom governmental
authority has been delegated to make military decisions having
collateral consequences to noncombatants in theaters of operations.See, e.g., Ryuichi Shimoda v. State, 8 Japanese Ann. of Int'l Law 212
(1964-65) (damage action for nuclear bombing of an undefended
civilian city). The trial court correctly ruled that the individual
defendants named in the complaint were not personally liable for
losses caused by military operations ordered by their Government.
Alep v United States [1996] FMSC 4; 7
FSM Intrm. 494 (App. 1996) (2 July
1996)
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FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite case asAlep v United States, 7 FSM Intrm. 494 (App. 1996)
TAKUO ALEP et al.,
Appellants,
vs.
UNITED STATES OF AMERICA et al.,
Appellees.
___________________________________
APPEAL CASE NO. C5-1993
BEFORE:
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Wanis R. Simina, Temporary Justice, FSM Supreme Court*
Hon. Alfred T. Goodwin, Temporary Justice, FSM Supreme Court**
*Associate Justice, Chuuk State Supreme Court, Weno, Chuuk
**Senior Judge, United States Ninth Circuit Court of Appeals
OPINION
Argued: January 20, 1995
Decided: July 2, 1996
APPEARANCES:
For the Appellants:
Barry J. Israel, Esq.
Strock & Strock & Lavan
1150 Seventeenth Street, N.W., Suite 600
Washington, DC 20036-4652
For the Appellees:
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Traylor T. Mercer, Esq.
Moore, Ching, Boertzel, Civille, Dooley & Roberts
Suite 400, GCIC Building
414 West Soledad AvenueAgaa, Guam 96910
* * * *
HEADNOTES
Trusteeship Agreement
Although the Trusteeship Agreement was a source of individual legalrights, it, standing alone, did not create private rights of action for
money damages for bureaucratic abuses attributed to U.S. or Trust
Territory officials. Alep v. United States, 7 FSM Intrm. 494, 496 (App.
1996).
Compact of Free Association
The waiver of sovereign immunity clause in the Compact did not
create any new causes of action, but merely waived sovereign
immunity with respect to valid existing claims. Alep v. United States,
7 FSM Intrm. 494, 497 (App. 1996).
International Law; Statutes of Limitation; Torts
Any attempt to breathe new life into tort claims time barred by the
relevant and analogous statutes should be approached with caution
because they are the type of personal claims for money damages
that become increasingly difficult of proof and difficult to defend
with the passage of time. Ordinarily such claims are resolved by
political and diplomatic efforts. Alep v. United States, 7 FSM Intrm.
494, 498 (App. 1996).
International Law
International law does not impose vicarious liability on the chief of
state or elected or appointed officials to whom governmental
authority has been delegated to make military decisions having
collateral consequences to noncombatants in theaters of operations.
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Alep v. United States, 7 FSM Intrm. 494, 498 (App. 1996).
Compact of Free Association
The only new cause of action created by the Compact is where theU.S. government accepts responsibility for losses or damages
arising out of nuclear testing in the Marshall Islands between 1946
and 1958. Alep v. United States, 7 FSM Intrm. 494, 498-99 (App.
1996).
Compact of Free Association; Statutes of Limitation
Nothing in the Compact suspends or tolls the statute of limitations.
Alep v. United States, 7 FSM Intrm. 494, 499 (App. 1996).
Statutes of Limitation
The statute of limitations has run on claims of mismanagement of
the Micronesian Claims Act unless there was continuing unlawful
conduct that would create a basis for equitable tolling of the statute
of limitations. Alep v. United States, 7 FSM Intrm. 494, 499 (App.
1996).
* * * *
COURT'S OPINION
ALFRED T. GOODWIN, Temporary Justice:
Plaintiff FSM citizens sued the United States of America and certain
named officials to recover compensation and damages for property
losses and personal injury suffered at the hands of United States
military and civilian officials between 1945 and 1949. The trial court
dismissed the action because the amended complaint failed to state
a claim upon which relief can be granted. FSM Civ. R. 12(b).
In this appeal, plaintiffs rely upon The United Nations Trusteeship
Agreement of 1947, the Compact of Free Association of 1986, the
Micronesian Claims Act of 1971, Pub. L. No. 92-39, 85 Stat. 92,
terminated August 3, 1976 (the "Act"), 11 F.S.M.C. 701 et seq.,
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and international law.
Plaintiffs argue that their claims are not time barred because the
Trusteeship Agreement preserved existing claims and imposedduties upon the United States as trustee. Plaintiffs allege these
duties were neglected, giving rise to additional claims and to the
tolling of time barriers to assert claims.
Each claim arose out of the United States armed forces' removal of
the entire local population (between 200 and 300 men, women, and
children) and exile from their homes on Fono Island and their
enforced stay on Moen Island until 1949. It was not seriously
disputed, and the trial court assumed it to be true for the purposes
of the motions to dismiss and for summary judgment, that the
survivors of the population that was forcibly removed and exiled
suffered hardship, including malnutrition, health problems, massive
violation of human and civil rights, as well as loss of life of family
members, and the loss of growing crops and other property. This
appeal is not about which or whether individuals rights were
violated, but about the availability of remedies.
I. Trusteeship Agreement
The first issue is whether the plaintiffs can make a claim for money
damages under the Trusteeship Agreement. The agreement became
effective among its signatory states in 1947, after the removal of
the population, but before the return of the exiles. This Court must
first consult and apply sources of law of the Federated States of
Micronesia. FSM Const. art. XI, 11. Having located no Micronesian
authorities, we may look outside the FSM for other aid in
interpreting the Trusteeship Agreement, including decisions by
courts in the United States.
The United States Court of Appeals for the Ninth Circuit has held
that the Trusteeship Agreement did not create private rights of
action for money damages. Temengil v. Trust Territory of the Pacific
Islands, [1989] USCA9 629; 881 F.2d 647 (9th Cir. 1989). While we
http://www.worldlii.org/us/cases/federal/USCA9/1989/629.htmlhttp://www.paclii.org/cgi-bin/LawCite?cit=881%20F2d%20647?query=http://www.worldlii.org/us/cases/federal/USCA9/1989/629.htmlhttp://www.paclii.org/cgi-bin/LawCite?cit=881%20F2d%20647?query= -
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are not bound by United States law, the decision is an instructive
review of the political and legal history of the Trust Territory, and the
application of the Trusteeship Agreement to private claims. The trial
court relied on the reasoning of Temengil in holding that theTrusteeship Agreement did not create private rights of action for
money damages. We agree with the trial court.
The trial court also considered People of Saipan v. United States
Department of Interior, [1974] USCA9 332; 502 F.2d 90 (9th Cir.
1974), which stated broadly that the Trusteeship Agreement was a
source of individual legal rights, id. at 99, suggesting that in a
proper forum the plaintiff class could seek injunctive relief to
enforce treaty rights.
The trial court recognized that the People of Saipan did not stand for
the proposition that the Trusteeship Agreement created private
rights to money damages from the trustee state, or from persons
carrying out, or wrongfully failing to carry out their duties under the
authority of the Sovereign assigned Trusteeship under the
agreement. The Trusteeship Agreement, standing alone, did not
create individual causes of action for money damages.
II. Retroactive Effect of Treaty
The plaintiffs recognize that the Trusteeship Agreement was not in
force when the population was displaced by military action following
a general war between belligerent powers using the affected islands
and waters for military operations. They argue, however, that the
Trusteeship Agreement was a treaty which imposed upon the United
States as trustee continuing duties in favor of the citizens of the
Trust Territory, and that during the period of Trusteeship the United
States wrongfully ignored, neglected, and failed to perform its duties
according to the terms of the Agreement.
The plaintiffs argue next that these failures to perform the duties
imposed by the treaty were a continuing course of wrongful conduct
that also violated the terms of subsequent agreements entered into
http://www.worldlii.org/us/cases/federal/USCA9/1974/332.htmlhttp://www.paclii.org/cgi-bin/LawCite?cit=502%20F2d%2090?query=http://www.worldlii.org/us/cases/federal/USCA9/1974/332.htmlhttp://www.paclii.org/cgi-bin/LawCite?cit=502%20F2d%2090?query= -
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between the United States and the people of the Trust Territory of
the Pacific, including the Micronesians residing in what are now the
Federated States of Micronesia. Accordingly, the plaintiffs argue,
there is no need to consider retroactive application of theTrusteeship Agreement because the wrongful conduct continued,
and created continuing rights and duties.
III. The Compact of Free Association
The plaintiffs contend that the rights created by the Trusteeship
were preserved in 1986 when the Trusteeship was formally
terminated, and that these rights could be vindicated under theterms of the Compact of Free Association, 174(c) (1986) (entered
into by the U.S. and the FSM, providing for damages for loss of
property or personal injury or death).
The plaintiffs' argument begins with the alleged misconduct of the
United States Navy during the period of the Navy control of the
territory from 1945 until the United States Department of Interior
assumed a degree of civilian control in 1951. Thereafter, until theformation of the government of the Trust Territory of the Pacific
Islands in 1968, plaintiffs argue that the United States remained
responsible for the management of the affairs of the affected islands
through executive delegations.
Between 1968 and the formal termination of Trusteeship in 1986,
with the concurrent effective date of the Compact, the High
Commissioner, representing the United States government, was the
responsible official whose duties under the Trusteeship included the
administration of remedial policies announced by the United States
government to compensate the victims of wartime and postwar
dislocations, and loss. Plaintiffs argue that the Trusteeship period
was marked by indifference and neglect of existing remedies on
behalf of the victims of the wrongful removal of island residents.
The historical recitation makes a strong case that the United States,
as trustee, failed to carry out the lofty promises of Article 6 and 7 of
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the Trusteeship Agreement, notably to "protect the inhabitants
against the loss of their lands and resources" Trusteeship Agreement
art. 6(2), and to "guarantee to the inhabitants . . . freedom of . . .
migration and movement," id. art. 7.
It does not follow, however, that the bureaucratic abuses attributed
to the Navy, the office of the High Commissioner and to the
government of the Trust Territory of the Pacific Islands, created
private rights of action for aggrieved individuals who might wish to
sue for money damages in their country's courts for historic wrongs.
We must continue the search for a private right of action.
IV. Compact Section 174(c)
The plaintiffs argue that the even if the Trusteeship Agreement by
itself creates no private right of recovery of money damages, when
read in connection with the Compact of Free Association, and the
Micronesian Claims Act, private rights were created, and are
preserved. If private rights of action are created by the intertwined
effect of the cited documents, then the plaintiffs point to 174(c) ofthe Compact as source of remedy.
At 174(c) the Compact states that "[a]ny claim . . . shall be
adjudicated in the same manner as a claim adjudicated according to
Section 174(d)." (Section 174(d) waives the sovereign immunity of
each party (state) in the courts of the other for certain types of
claims including damages for loss of property and personal injury.)
The trial court, however, correctly noted that the 174(d) waiver
language creates no new causes of action, but merely waives
sovereign immunity with respect to existing valid claims. The search
for a valid source of causes of action, in the end, takes us to the law
of torts.
V. Tort Claims Timed Barred
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The trial court dismissed five counts of the amended complaint
alleging tort claims on the ground that under both United States law
(Federal Tort Claims Act, and 28 U.S.C. 2401, limitations) and
Micronesian law, (Trust Territory Statute of 1951) the claims weretime-barred. On appeal, appellees offer the additional argument of
sovereign immunity, upon which they relied in the trial court but
which the trial court declined to reach because the time bar
disposed of the matter. We agree with the trial court.
The tort claims are not only time barred by relevant and analogous
statutes, but are the type of personal claims for money damages
that become increasingly difficult of proof and difficult to defend
with the passage of time. Any attempt to breathe new life into such
stale claims should be approached with caution. Ordinarily claims of
this type are resolved by political and diplomatic efforts resulting in
statutory schemes for compensation, as in the case of United States
citizens of Japanese ancestry wrongfully removed from their homes
and placed in concentration camps within the United States in 1942.
Scholarly writing since the General Assembly of the United Nations
adopted the Convention on the Non-Applicability of StatutoryLimitations to War Crimes and Crimes Against Humanity, G.A. Res.
2391, U.N. GAOR, 23rd Sess., (1968), strongly supports an
international common law principle opposed to the employment of
statutes of limitations to war crimes and crimes against humanity.
However, the choice whether to allow the defense of municipal
statutes of limitations is not compelled by the municipal law of
states that have not signed the Convention. The United States
government has not signed the Convention.
Notwithstanding the equitable and moral arguments against barring
the tort claims in this case as untimely, the trial court correctly ruled
them time barred. See, e.g., Handel v. Artukovic, 601 F. Supp. 1421
(C.D. Cal. 1985) (applying California statute of limitations to bar 35
year old claims by plaintiff-class for damages for crimes against
humanity committed by "Independent State of Croatia" during
German occupation 1941-45).
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VI. Individual Defendants
We need not decide whether the tort claims (assaults, batteries,
trespass, false imprisonment, infliction of emotional distress,
confiscation and conversion of property) are also crimes against
humanity, for which the individual defendants, as agents of the
United States might, in a proper case be subject to liability despite
the passage of time. Any claims that survive the running of time and
the expiration of various remedial statutes providing for
compensation for damages caused by military operations in the
Pacific would be recognized as claims against the United States, not
against the individual defendants who may have had a part in
executing the actions now in question.
International law does not impose vicarious liability on the chief of
state or upon elected and appointed officials to whom governmental
authority has been delegated to make military decisions having
collateral consequences to noncombatants in theaters of operations.
See, e.g., Ryuichi Shimoda v. State, 8 Japanese Ann. of Int'l Law 212
(1964-65) (damage action for nuclear bombing of an undefendedcivilian city). The trial court correctly ruled that the individual
defendants named in the complaint were not personally liable for
losses caused by military operations ordered by their Government.
VII. Acceptance of Responsibility
The only new "cause of action" created by the Compact is found in
177(a) where the U.S. Government accepts responsibility for losses
or damages arising out of nuclear testing in the Marshall Islands,
between 1946 and 1958. Other subsections of 177 deal with
methods of settlement of claims. The entire section is limited to
claims from the Marshall Islands and the testing operations in those
waters.
Section 174(b) of the Compact broadly accepts responsibility by the
government of the United States and an agreement to pay any
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That some sort of remedy should survive both the passage of time
and the failure of individual plaintiffs to take advantage of the
Micronesian Claims Act is perhaps the plaintiffs' strongest argument,from a moral and ethical viewpoint. The governments of the United
States and Japan appropriated substantial sums of money to pay
claims. The United States government established administrative
procedures for the settlement of such claims as might be timely
presented pursuant to the Act by Micronesian residents, including
United States citizens, who had suffered losses by reason of military
operations in the area.
This attempt to renew the claims as tort claims, with renewal based
on tolling principles, can prevail only if this court should hold that
there was continuing unlawful conduct by the High Commissioner
(or his or her responsible agents), in the administration of the
Micronesian Claims Act, that would create a basis for equitable
tolling of statutes of limitations.
Appellees argue that the statute of limitations begins to run when
the wronged party learns or should know of the harm. Thisargument, assuming it is correct as a general theory of time
limitations, transfers the concept of "the harm" from forced exile to
the alleged mismanagement of the Micronesian Claims Act by
United States agents. The alleged mismanagement of the Claims
process may create equitable tolling, but the "harm" began and
ended with the forced exile, which ended in 1949. If there was
mismanagement of Micronesian Claims by the United States, the
statute has run and the claims is time barred.
IX. Conclusion
With the exception of the questions about the manner of processing
claims from Fono Islanders, which appear to be separate and
discrete claims in each case, and which may have some residual
viability if the proper parties bring them in the proper forum, the
other claims asserted in this action were appropriately disposed of
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by the trial court. The judgment is affirmed without prejudice to any
claims that may yet have validity under the theories argued by the
plaintiffs for equitable tolling of the statute of limitations, and the
principles announced in Ralpho v. Bell, [1977] USCADC 330; 569F.2d 607 (D.C. Cir. 1977).
* * * *
DISSENTING OPINION
WANIS R. SIMINA, Temporary Justice:
I would reverse and remand this case because the lower court erred
in dismissing the tort claims. Sub-sections 174 (b) and (c) of the
Compact of Free Association, when read together, specifically
provide that "(t)he Government of the United States shall accept
responsibility for and shall pay . . . (a)ny claim . . . arising from an
act or omission . . . of the United States prior to the effective date of
this Compact . . ." 48 U.S.C.S. 1681, at 104 (Supp. 1990). The
United States Government's attempt to deny its acceptance of
responsibility for wrongful acts committed during pre-Compact time
reflects the continuing betrayal of indigenous peoples by this same
Government. Ever since 1831, when Chief Justice Marshall first
wrote his opinion in Cherokee Nation v. Georgia, 30 U.S. 1, 8 L. Ed.
25 (1831), this same government has refused to recognize the plain
language of its own treaties. By declaring Indian Nations domestic
nations rather than foreign nations, Justice Marshall annihilated the
complete and separate sovereign power promised to the indigenous
people through numerous treaties. To justify why his Court would not
allow the Indians to sue the United States Government for its
wrongs, Marshall said:
At the time the Constitution was framed, the idea of appealing to an
American Court of Justice for an assertion of right or a redress of
wrong, had perhaps never entered the mind of an Indian or of his
tribe. Their appeal was to the tomahawk, or to the government. This
was well understood by the statesmen who framed the Constitution
http://www.paclii.org/cgi-bin/LawCite?cit=%5B1977%5D%20USCADC%20330?query=http://www.paclii.org/cgi-bin/LawCite?cit=569%20F2d%20607?query=http://www.paclii.org/cgi-bin/LawCite?cit=569%20F2d%20607?query=http://www.paclii.org/cgi-bin/LawCite?cit=%5B1977%5D%20USCADC%20330?query=http://www.paclii.org/cgi-bin/LawCite?cit=569%20F2d%20607?query=http://www.paclii.org/cgi-bin/LawCite?cit=569%20F2d%20607?query= -
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of the United States and might furnish some reason for omitting to
enumerate them among the parties who might sue in the courts of
the Union.
Cherokee Nation, 30 U.S. at 18, 8 L. Ed. at 31.
One hundred and sixty-five years later the United States
Government calls upon this Court once again to betray the
indigenous people to whom they have promised an opportunity for
reparations of past wrongs. I cannot allow the United States
Government to again disavow its prior agreement with an
indigenous people, namely, the people of Micronesia.
Statute of Limitations
From my reading, the trial court found that the Fono people's tort
claims had accrued in 1951, and therefore the statute of limitations
had run either 2 or 6 years later based upon 28 U.S.C. 2401 and
Section 5 of Article XV of the Status of Forces Agreement [SFA]. The
lower court's reasoning was that the SFA provided "that any
judgment presented 'shall be deemed manifestly erroneous' if the
claim would have been barred by the statute of limitations if the
claim had been brought in a court of the United States." Alep v.
United States, 6 FSM Intrm. 214, 220 (Chk. 1993). The lower court
held that all of the tort claims "accrued, at the latest, when the
applicable Trust Territory statute took effect in 1951." Id. While the
trial court does not identify the statute, it apparently refers to 6 TTC
310. That statute was originally promulgated in 1952 by the first
Trust Territory High Commissioner. See Executive Order No. 32
[Promulgating the Trust Territory Code (Dec. 22, 1952) Capt. 5
324].[1] The provision states "For the purposes of computing the
limitation of time provided in this Chapter, any cause of action
existing on May 28, 1951, shall be considered to have accrued on
that date."
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However, "no cause of action generally accrues until the plaintiff has
a right to enforce his cause." United States v. One 1966 Red
Chevrolet, 457 F.2d 1353, 1358 (5th Cir. 1972); see also Walker v.
United States, 458 F. Supp. 251 (D.D.C. 1978) [Period of limitationdoes not run until plaintiff has right to enforce his cause of action];
Jackson v. United States, 182 F. Supp. 907 (D.D.C. 1960) [claim
accrues when it may be made the basis of judicial action]. So to
apply a statute of limitations, the appellants must have had a right
to enforce their cause of action either in the Trust Territory courts or
in the courts of the United States against the United States and
related defendants.[2]
As late as 1967 the Trust Territory courts maintained that neither the
Trust Territory nor the United States could be sued in the courts of
the Trust Territory without their consent. Alig v. Trust Territory, 3 TTR
603 (App. 1967). The first waiver of immunity by the Trust Territory
Government [TTG] for tort actions other than negligence came in
1968. 6 TTC 253. (Pub. L. No. 4-7, Aug. 23, 1968). This legislation
may have marked the first time the appellants had the right to
enforce their claims based on intentional torts against the TTG.
The TTG had previously waived its immunity for torts based on
negligence. 6 TTC 251. This waiver applied to claims "accruing on or
after September 23, 1967." 6 TTC 251(c). But any claims against
TTG based upon intentional torts were excluded from the jurisdiction
of the Trust Territory High Court. 6 TTC 252(5). That subsection
states that "The Trial Division of the High Court shall not have
jurisdiction under the foregoing Section 251 of: Any claim arising outof assault, battery, false imprisonment, false arrest . . . ."[3] The
Congress of Micronesia, when passing Section 253, did not repeal
the jurisdictional exclusion of 251. Section 253 only waives
immunity "for tort claims." The Trust Territory High Court Appellate
Division subsequently ruled that the TTG had not waived its
immunity to claims based on intentional torts excluded from the
court's jurisdiction. Salons v. Trust Territory, 8 TTR 141 (App. 1980).
The Federated States of Micronesia Code later codified these section
252 exclusions. 6 F.S.M.C. 602(5). Thus, the appellants' intentional
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tort claims could not be enforced and therefore never accrued. One
1966 Red Chevrolet, 457 F.2d at 1358. Nothing in the Trust Territory
statutes nor in the Federated States of Micronesia Code applies to
these claims.
Therefore, the lower court erred by finding an applicable statute of
limitations that bars these claims.
This analysis also applies to the United States as a defendant. The
lower court held that under Section 5 of Article XV of the Status of
Forces Agreement "that any judgment [under section 174 of the
Compact] presented [to the Court of Appeals for the Federal Circuit
for payment] 'shall be deemed manifestly erroneous' if the claim
would have been barred by the statute of limitations if the claim had
been brought in a court of the United States." Alep, 6 FSM Intrm. at
220.
The tort claims of the appellants could not have been brought
against the United States in any U.S. domestic court, as they
occurred in the Trust Territories. 28 U.S.C. 2680(k) excludes allsuits against the United States for torts if the claim arose in a
foreign country. 28 U.S.C. 2680(k). The U.S. Courts held that the
Trust Territory was a foreign country even though governed by the
United States. See Callas v. United States, [1958] USCA2 210; 253
F.2d 838 (2d Cir.) [Kwajalein], cert. denied, 357 U.S. 936 (1958); see
also Brunell v. United States, 77 F. Supp. 68 (S.D.N.Y. 1948) [Saipan].
Therefore the appellants' claims could not have accrued since they
had no right of enforcement.
The earliest time the appellants' tort claims could have accrued was
on the effective date of the Compact of Free Association, when the
United States waived its sovereign immunity. Thus, the lower court
erred in dismissing the tort claims on the basis that the claims
accrued in 1951 and were therefore barred by the statutes of
limitation.
Waiver of Immunity
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The court also faces the task of interpreting the waiver of immunity
provision of the Compact. These provisions are found in Title I,
Article VII 174 of the Compact [48 U.S.C.S 1681, at 104 (Supp.1990)]. The two specific sections pertinent to this case are 174(c)
and 174(d). Subsection (c) states in part:
(c)Any claim not referred to in Section 174(b) and arising from an
act or omission of the Government of the Trust Territory of the
Pacific Islands or the Government of the United States prior to the
effective date of this Compactshall be adjudicated in the same
manner as a claim adjudicated according to Section 174(d).
[emphasis added]. Subsection (d) in turn provides in part:
"(d) The Governments of the . . . Federated States of Micronesia
shall not be immune from the jurisdiction of the courts of the United
States, and the Government of the United States shall not be
immune from the jurisdiction of the courts of the . . . Federated
States of Micronesia in any case in which the action is based on . . .
a case in which damages are sought for personal injury or death or
damage to or loss of property occurring where the action is brought.
48 U.S.C.S. 1681, at 104 (Supp. 1990) [emphasis added].
The Vienna Convention Regarding Interpretation, Article 31,
paragraph 1[4] states that "(a) treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given the termsof the treaty in their context and in the light of its object and
purpose." In reading the text of the Compact, the plain language of
the two sections makes clear, first, that the United States has
waived its sovereign immunity. Secondly, the waiver extends to "any
claim" not covered by section 174(b)[5] that arises from "an act or
omission of the Government of the Trust Territory. . . or the
Government of the United States prior to the effective date" of the
Compact that seeks damages for "personal injury or death or
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damage to or loss of property occurring where the action is
brought." It is a general, non-restricted waiver of sovereign
immunity by the United States.
Other provisions of the Compact also demonstrate that the 174
waiver is non-restrictive as to time and type of claim. Three
separate provisions clearly indicate that in other situations the
waiver of sovereign immunity could be restricted if that had been
the intention of the parties. In section 177 which is specific to claims
for loss or damage to property and persons resulting from the
nuclear testing program conducted by the United States the waiver
was restricted by a provision added by the United States Congress.
In Section 103(g) [Title I Approval of Compact; Interpretation of; and
U.S. Policies Regarding, Compact; Supplemental Provisions, 48
U.S.C.S. 1681, at 860] the United States Congress conditioned its
approval of Section 177 of the Compact. That provision states:
It is the intention of the Congress of the United States that the
provisions of section 177 of the Compact of Free Association and the
Agreement between the Government of the United States and theGovernment of the Marshall Islands . . . constitute a full and final
settlement of all claims described . . . and that any such claims be
terminated and barred except insofar as provided for in the Section
177 Agreement.
Compact 103(g). See also Anthelix v. United States, 873 F.2d 369
(D.C. Cir. 1989).
Section 178 provides another example of a limited waiver for claims
in the area of torts by agencies of the United States Government
operating in the Federated States subsequent to the effective date
of the Compact. That section waives immunity but limits the remedy
to that found in 28 U.S.C. 2672 [settlement procedure] and 31
U.S.C. 1304 [funding source]. If the claim can not be settled then it
must be arbitrated under Article II of Title Four of the Compact.
Section 178(d) makes a point of stating that the provisions of 174(d)
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"shall not apply" to tort claims under this section.
Section 174(d) of the Compact with Palau is identical to our
Compact, except it contains a restriction that the subsection "shallapply only to actions based on . . . injuries or losses suffered on or
after the effective date of this Compact."
Finally, the waiver of sovereign immunity by the United States is not
restricted to those claims waived under the Federal Torts Claims Act.
28 U.S.C. 2401, 2672, 2680. If the parties had intended to limit
section 174 to claims under the Federal Torts Claim Act, they would
have said that in section 174.[6] In the words of John Marshall "(t)his
was well understood by the statesmen who framed the (Compact)
and might furnish some reason for omitting to enumerate (any such
restrictions in the Compact)." Cherokee Nation, 30 U.S. at 18, 8 L.
Ed. at 31.
Further, the exceptions listed in 28 U.S.C. 2680 do not apply. If
they did all tort claims arising in the Federated States of Micronesia
would be barred under 28 U.S.C. 2680(k) because it is a foreigncountry. Unless, of course, one follows John Marshall's logic in
Cherokee Nation, and decides that the Federated States of
Micronesia are merely domestic nations within the United States. An
unfortunate decision suffered for the past one hundred and sixty-
five years, to which we are not bound.
The plain language of the Compact of Free Association should stand
and the plaintiffs should be permitted to bring their tort claims forpast wrongs in the lower court. I would reverse the order of the
lower court dismissing the appellants' tort claims and remand the
action on those claims to the lower court for further proceedings.
[1] There is no provision in that code that allowed suits against the
government of the Trust Territory or the United States.
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[2] The United States defendants have all been sued in their official
capacity and therefore the government of the United States is the
real party defendant.
[3] There is some authority that the claims for the torts of conversion
and trespass may have run against the TTG as those tort were not
specifically excluded by the limitation of 252. But they could not
have run against the United States. See infra.
[4] The United States has apparently not adopted this convention.
But the legal rules embodied in Articles 31 and 32 on the
interpretation of treaties were adopted without a dissenting vote at
the Conference and are considered as declaratory of existing law.Louis Henkin et al., International Law Cases and Materials 445 (2d
ed. 1987) [citation omitted].
[5] Subsection (b) covers unpaid judgments and settlements
rendered in the courts and pending administrative claims that
existed at the effective date of the Compact.
[6] There are numerous sections throughout the Compact in which
judicial action and claims procedures have been restricted by
reference to statutes of the United States. In particular 463 states
that any reference to provisions of the United States Code in the
Compact "constitutes the incorporation of the language of such
provision into this Compact . . . ." Thus the intention of the parties is
clear and failure to reference a normally controlling code provision
reveals the intention of the parties that those provision would be
inapplicable.
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